Eminent Domain Reform Sweeps Western States

By Headwaters News, 2-26-07

Numerous states around the country are retaliating against a 2005 Supreme Court ruling that gave local governments the power to condemn private property for economic development. That retaliation is especially pronounced in Western states, where private property rights are considered somewhat of a divine right.

The lead in a Washington Post article from June 24, 2005 sets the stage. Charles Lane writes: “The Supreme Court ruled yesterday that local governments may force property owners to sell out and make way for private economic development when officials decide it would benefit the public, even if the property is not blighted and the new project’s success is not guaranteed.” This ideology, as one can imagine, stands in stark contrast to the culture of our region for many reasons.

The reaction a year and a half later comes from state Legislatures, which, in many cases, haven’t met since before that ruling in 2005. Right now, all of the eight Western states are or have addressed eminent-domain reform, primarily looking at ways to protect property-owners’ rights and investments and lessen local governments’ ability to condemn land, though not always.

Traditionally, eminent domain laws were used to condemn land for such things as railroads, bridges, school and other public infrastructure needs. Recently, it has been used by cities to fight urban blight. But some cities have tried to use it to hand over private land to developers who want to build box stores, arguing that the large retails will provide a public good, namely jobs and tax revenue.

Over the weekend, reports the Albuquerque Tribune, New Mexico lawmakers in the House approved a measure directly negating that U.S. Supreme Court decision 62 to 5. The bill, which now heads to the Senate, does not take away other eminent domain powers, just restricts local governments’ ability to condemn property solely for economic development.

Today’s Denver Rocky Mountain News reports that Colorado wants to change its eminent domain laws to keep the federal government from condemning land to dramatically expand the Pinon Canyon training site. Military officials said they’d use eminent domain to force buyers to sell ranches and other holdings, but many locals have no intention of selling. The proposed bill would disallow the federal government from using eminent domain in this case, which would force the government to find other ways of acquiring the land.

Admittedly, even if it passes, the bill may not work. But state lawmakers hope the Colorado’s congressional delegation will pay attention and turn up the heat to end this plan.

Last week, reported the Salt Lake Tribune, Utah lawmakers considered a bill that restores some eminent domain powers, allowing local governments to condemn land to fight urban blight. Those powers were stripped a couple years ago when lawmakers said Ogden was overstepping its authority and trying to allow a Wal-Mart to be built on land condemned to rid the area of urban blight.

That measure created problems for other cities, which is why lawmakers are readdressing the issue. But this version include more protections for landowners, including a stipulation that the reimbursement must not only cover the fair market value of the land condemned, but the value required to start anew.

Also last week, the Wyoming Senate approved an eminent-domain bill that allows appraisers to consider the value of other easements on comparable properties when determining fair market value on a property, reported the Casper Star-Tribune.

Many of these reform bills stress fair compensation for landowners, protecting them against companies that could be preying on landowners without the means to fight. But lawmakers, property-rights advocates and others admit that they don’t know if such revisions will really work, or if they’ll just invite more lawsuits. But they’re will to see what happens.